The original common law concept was that your aerial rights extended indefinitely above your land.
However the present law in Australia is, subject to any challenge to the correctness of the 1991 decision in Bendal Pty Ltd v Mirvac Project Pty Ltd [1991] 23 NSWLR 414 – 470 and Perilya Broken Hill Limited v Valuer General [2015] NSWLEC 43 both of which applied the English 1978 decision in Bernstein v Skyview & General Ltd [1978] that a surface owner’s rights in the airspace above should be restricted “to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it”.
Well then, how high is that? The answer is: it is not clear, in Australia, what that limit is.
So the air above your land is not necessarily your own but you do have ownership of enough for ordinary use and enjoyment. I suspect this means - "it depends on the circumstance" - does count if safety is involved like a crane hanging overhead, doesn't count if meals are being delivered by drone to next door, does count if a peeping tom drone is looking in your window, but probably doesn't count if over a large open expanse of private property - will all have to be contested in court.
Garry
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